Copyright.

Copyright.

1. (1) Introduction

   • Property right
   • Gives owner exclusive right to deal with work and prevent others from doing so
   • Arises by operation of law [CPDA]
     • Unregistered right
     • Arises on fixation (expression of idea in permanent form)

2. (2) Subsistence [s. 1]

   • (i) Is it a protected type
     • Classic (literary, musical, dramatic or artistic) [s. 1(1)(a)] [s. 3] [s. 4]
       • Must be original (e.g. not news, as public knowledge)
     • Derivative (sound recording, film or broadcast) [s. 1(1)(b)] [s. 5A] [s. 5B] [s. 6]
       • Need not be original
       • E.g. a remix
     • Typographical arrangements of published editions [s. 1(1)(c)]
       • E.g. layout of dictionary
   • (ii) Is it the expression of an idea [Green]
   • (iii) Is it de minimis [Exxon v Exxon - name of company or title of book are de minimis, and should be protected by trademark not copyright]

3. (3) Identify Owner

   • (i) Owner is person with right to exploit the work and perform restricted acts [s. 16]
   • (ii) Generally the author [s. 11(1)]
     • To determine author, consult s. 9(1) and s. 9(2)
     • Joint authorship - more than one author collaborates to make the work, with a common aim, and the contribution of each is not distinct from the other [s. 10(1)]
       • Must make substantial and original contribution to be joint author - need not be equal contributions but slight is insufficient [Hadley v Kemp - only band member that wrote the song was the author, not the members that played it]
         • The contribution is significant if it is a distinct and important part of the work [Fisher v Brooker]
       • Merely tweaking the work is insufficient - must be pre-concerted joint design [Levy v Rutley - author died, someone tried to tweak and claim joint authorship - insufficient]
     • Exception: employees [s. 11(2)]
     • Commissions: artist is still owner - client cannot distribute/copy the work
   • (iii) Duration
     • Life of author + 70 years
     • Depending on type of work, consult s. 3, s. 4, s. 13A, s. 13B, s. 14 and s. 15

4. (4) Infringement

   • (i) Has a restricted act been performed [s. 16]
   • (ii) Can a claim be established
     • Are the works objectively similar
     • Is there a causal connection (was D aware of the work, did he have access, etc.)
     • Was a substantial part of the work copied
       • Substantial: identify similarities/differences, use of material in original and D's explanation for similarities [Da Vinci Code]
   • (iii) Defences
     • Didn't copy
     • Fair dealing [s. 29, s. 30(1), s. 30(2)]
     • Incidental inclusion [s. 31]
     • Consent/license [s. 16(2)]
   • (iv) Remedies
     • Damages (reflecting C's position had the infringing act not been performed)
       • Exemplary if flagrant infringement
     • Account of profits, reflecting D's gain from infringement
     • Injunction
     • Delivery up

5. (5) Moral Rights

   • Personal right of author that cannot be assigned
     • Enforced via breach of statutory duty
     • Can be waived in exchange for acknolwedgment
     • Right of paternity must be asserted [s. 77/78]
   • Rights granted
     • Integrity (no derogatory treatment) [s. 80]
     • No false attribution [s. 84]
     • Privacy of certain photos/films [s. 85]

6. (6) Performers Rights

   • Right to equitable remuneration for exploitation of performance [s. 182D]
   • Non-property right to consent to broadcasting/recording
   • Property right to consent to tangible reproduction/distribution
   • Rights under exclusive recording contract [s. 185(1)]
   • Right to record, play in public or import/deal with illicit recording [s. 186, 187 and 188]